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was ratified in November, 1894, and its judiciary article went into effect on the 1st day of January, 1896. It was believed that the judicial system of the State needed enlargement and readjustment to meet the growing demands of its great and increasing population and interests, and some of the ablest lawyers of the State participated in the evolution of the present judicial article. A brief span of half a decade, however, demonstrated that the work of the convention was not far-sighted enough to meet the requirements even of the immediate future; and it is not harsh to say that the judicial article has proved, in many respects, unsatisfactory. Statutes relating to the judiciary, passed since the new Constitution went into effect, as well as some surviving its adoption, have likewise, together with the constitutional provisions themselves, resulted in an incongruous body of law relating to the judiciary, from which distinct evils have arisen and will continue to develop, unless proper and searching remedies are applied.
Conspicuous among the undesirable conditions to-day existing in our judicial system are the following:
The large and increasing arrearages in the number of untried causes in many of the counties of the State, resulting often in gross and unreasonable delay in the administration of the law and in a failure of justice.
2. The disproportionate distribution of justices from the various districts to the Appellate Divisions and Trial Terms of the First and Second Departments.
3. The eagerness of Supreme Court justices, from districts and departments other than the First and Second, to be transferred to these departments and districts for definite or temporary periods, because of the largely enhanced compensation there paid.
4. The employment of political influence and pressure upon the Executive to procure such assignments in the First and Second Departments, and the consequent and incessant dragging of the judiciary into politics, with the demoralizing effect incident thereto.
It is the purpose of this paper to present a series of facts which throw light on the present situation and its gradual evolution, and to suggest some remedies for the existing evils, for the consideration of the New York State Bar Association, which is vitally interested in the judicial welfare of the people of this great State.
It becomes necessary, at the outset, then, briefly, to consider some of the important provisions of the Constitution and laws which have led to the present condition of affairs.
THE CONSTITUTION OF 1894 AND AMENDMENTS.
Among the salient features of the judiciary article of the Constitution of 1894, as distinguished from prior Constitutions, were the reduction of the five judicial departments to four; the increase of the appellate judges in each department from three or four to five, and in the First Department, to seven; a considerable increase in the number of Supreme Court justices in the State, and the limitation of the jurisdiction of the Court of Appeals in certain directions.
The need for amendment to the judiciary article, however, became apparent before it had fairly become warm, and, while several amendments have already been adopted and others started in the Legislature, it is generally felt that something radical must be done at once to bring its provisions up to the imperative needs of the people of the State, and to correct abuses which have asserted themselves.
A glance at the changes already made, and those suggested and contemplated, has a direct bearing upon the subject under discussion.
In 1899 sections 2 and 7, relating to the Appellate Divisions and the Court of Appeals, respectively, were amended so as to authorize the Governor to make temporary designations to the Appellate Divisions and to the Court of Appeals, of Supreme Court judges from the entire State, when the pressure of business so requires. Under these amendments, at the present time, there are taken from the body of trial justices, four judges, two of them in the Court of Appeals, one in the Second Department and one in the Fourth Department. It was believed by the judicial convention that the abridgment of the jurisdiction of the Court of Appeals, and the enlargement of the Appellate Divisions would enable the work of the State to be done for many years to come. This anticipation has not been realized, notwithstanding the lavishness and unselfishness with which the Court of Appeals has deprived itself of the power of passing upon questions presented to it, under its modest construction of the provision, appearing for the first time in the new Constitution, that "no unanimous decision of the Appellate Division of the Supreme Court that there is evidence supporting or tending to sustain a finding of fact, or a verdict not directed by the court, shall be reviewed by the Court of Appeals."
In this connection the able address of Mr. Hornblower, before this Association last year, is recalled, in which he pointed out that the construction put by the Court of Appeals upon this provision is working sad havoc with the broad administration of justice and equity by the highest tribunal of this State.
The inability of the present judicial force, as now distributed and working, or in some instances not working full time, to meet the demands, has led to some other recent attempts at constitutional tinkering. In 1900 a concurrent resolution was adopted by the Legislature, directing that an amendment be submitted to the people, providing for the election of four additional justices of the Supreme Court in the first district, and three additional justices in the second district. (Laws 1900, vol. 2, p. 1645.) This proposed amendment, however, does not appear to have been voted upon by the next Legislature, and so died.
In 1902 a concurrent resolution was passed, amending section of article 6 of the Constitution, authorizing the Legislature, from time to time, to increase the number of justices in any judicial district according to population, and to divide the second district into two. (Laws 1902, vol. 2, p. 1802.)
Whether this concurrent resolution will be passed by the coming Legislature is doubtful, and the objections to it will presently be considered.
INCREASE OF JUDGES BY CONSTITUTION OF 1894.
The Constitution of 1894 increased the working force of the Supreme Court nearly twenty per cent. The total number of Supreme Court justices and their equivalents in the Superior City Courts, under the old Constitution, being sixty-four, and under the new Constitution, seventy-six, including an increase of three judges in the First and Second Districts each, and one judge in each of the other districts, distributed as follows: In the First District there were formerly seven Supreme Court judges, six judges of the Superior Court of New York and six. judges of the Court of Common Pleas, making nineteen
in all, which were increased to twenty-two; in the Second District there were six Supreme Court justices and three judges of the City Court of Brooklyn, making nine in all, which were increased to twelve; in the Third, Fourth and Sixth Districts each, there were five Supreme Court judges, which were increased to six; in the Fifth and Seventh Districts each there were six Supreme Court justices, which were increased to seven; in the Eighth District there were six Supreme Court justices and three judges of the Superior Court of Buffalo, making nine in all, which were increased to ten.
The present contributions of Supreme Court justices from the various districts to the four Appellate Divisions, and to which is in large part due the present congestion of business, at least in the Eighth Judicial District, appears from the following figures:
Of the seventy-six Supreme Court justices in the State, twenty-nine are assigned to appellate work in the Court of Appeals, the Appellate Divisions of the State and Appellate Term of New York city, or in other words, thirty-eight per cent. of the total number of judges are engaged in appellate work and withdrawn from trial work. The percentage of judges so assigned from the various districts for appellate work is as follows: First, thirtytwo per cent.; Second, forty-two per cent.; Third, thirtytwo per cent.; Fourth, thirty-three per cent.; Fifth, fortythree per cent.; Sixth, thirty-three per cent.; Seventh, forty-three per cent.; Eighth, fifty per cent. These percentages include and take into account the assignment of three of the judges of the First District for work on what is known as the Appellate Term of the Supreme Court in New York city, and the assignment of one judge each from the Second and Seventh Districts to duty in the Court of Appeals; so that there are left for trial work in